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Estate Distribution Procedures

When a person dies without a will, the court appoints a personal representative to administer the estate and make sure the property is distributed correctly. The court may require the personal representative to obtain a bond. On July 1, 1995, South Dakota adopted the Uniform Probate Code Articles I, II, III, IV and VIII. When there is no will, there is an intestate probate proceeding, which usually takes place in the county the decedent lived in when the decedent died. These proceedings are to protect the inheritor(s)' rights and also to make sure the various taxes and other estate debts are paid. All creditors of the estate must be paid before the estate can be distributed to the heirs and beneficiaries. If the estate is entitled to collect money, this money is collected during the intestate probate proceeding. It is during the intestate probate proceeding that the taxes would be paid. After these debts are paid, the intestate property is distributed as illustrated below. If a spouse survives the decedent, the spouse receives the entire estate, unless the decedent is also survived by descendants or a prior marriage or other relationship. In that case, the spouse inherits $100,000 and 1/2of the remaining estate. The surviving spouse is also entitled to inherit certain exempt property and family and homestead allowances. Exempt property includes, but is not limited to, the family Bible (if its value does not exceed $200), clothing, and one year's supply of fuel. Family allowance is awarded to the spouse and minor children for them to live on while the estate is being administered. It is based on the standard of living the family lived on when the decedent was still alive. It is no longer possible to disinherit a spouse unless the spouse agrees. Under South Dakota's Statute 29A­2­103, the part of the estate that the surviving spouse does not inherit (or the entire estate if there is no surviving spouse) passes in this order to the following individuals: First it would go to the decedent's descendants; If the decedent is not survived by descendants it goes to the decedent's surviving parent(s); If there are no surviving descendants or parents, it goes to the decedent's parent's descendants; If there are no surviving descendants, parents, or descendants of the decedent's parents, it goes to surviving grandparents. If there are no surviving people in the category listed above, it goes to decedent's relatives. Under South Dakota's Statute § 29A­3­914, if there are no relatives to inherit from the estate, the estate escheats (meaning it goes to) the State of South Dakota.

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